“It Takes [at least] Two” – Joint Works Under U.S. Copyright Law
BY CARL EPPLER
Copyright law can be complicated, especially when it comes to single works created by two or more authors. Not every partnership can be as fruitful as Lennon & McCartney, Lerner & Loewe, or even Rob Base & DJ E-Z Rock, so it is important to understand the rights and risks for authors of joint works. This article is a brief overview of joint works in copyright law.
The typical situation: My friend and I wrote something together. Who owns it?
Under U.S. copyright law, a “joint work” is created when two or more authors make “inseparable” or “interdependent” contributions to a single work, intending for the result to be a joint work. In other words, you and your friend wrote a book; you each wrote a few chapters; the chapters depend on each other, and you intended to put them together in a single work. Congratulations, you have a joint work! This means that both of you own equal parts of the resulting book. This is an important aspect of U.S. copyright law (which differs from other areas of the law)—each author owns an equal share of the joint work. The law does not care if you created 75% of the book and your friend created only 25%. If the two parts are inseparable and you both intended for them to be one work, you each own half the work.
So, what are some of my rights as a joint owner?
- You can license the work to whomever you want. You do not need the other author’s permission. You cannot, however, offer an exclusive license, because you do not own 100% of the work.
- You can update and revise your portion of the joint work for your own purposes.
- You have a right and a duty to an “accounting,” meaning that you have to account to your co-author for any profits you made exploiting the joint work (and vice-versa). The co-author, who may not have exploited the work at all, gets half of those profits. Pretty sweet deal!
- You both can enforce your rights (read: take legal action) in the work. You do not need the other author’s permission to do this. This can actually get a little tricky if you want to sue an infringer while your co-author simply wants to license the work to the would-be infringer. Co-authors can often find themselves at cross-purposes given their equal rights to the work.
- This got complicated quickly, how can I avoid this?
Sticky situations involving joint ownership can be avoided by determining each author’s rights at the beginning of the relationship. Consulting an attorney and putting these decisions in writing in a contract between the authors is also recommended. There are many ways to reach a beneficial compromise and avoid the potential pitfalls of joint ownership.
Associate, Frost Brown Todd
Carl is an associate in the Intellectual Property practice group at Frost Brown Todd, where he advises clients on trademark and copyright issues, including registration, protection, and litigation. Carl works in both the Advertising and Entertainment Law groups.